Ayres v. Sears, Roebuck & Co.

Decision Date19 May 1986
Docket NumberNo. 84-1966,84-1966
Parties, Prod.Liab.Rep.(CCH)P 11,004 Joanne AYRES, et al., Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Ray Guy, Dallas, Tex., Vic Terry, Garland, Tex., Kirk B. Purcell, Houston, Tex., for plaintiffs-appellants.

Timothy E. Kelley, John W. Henvey, Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before GARZA, POLITZ, and HILL, Circuit Judges.

POLITZ, Circuit Judge:

In this diversity jurisdiction, Texas products liability case involving a television set which was allegedly defective and the cause of a fire, the district court directed a verdict for the defendants at the close of plaintiffs' case-in-chief. Finding evidence of such quality and weight as to require submission of this case to the jury, we reverse and remand.

FACTUAL BACKGROUND

An August 1979 fire at the home of Joanne Ayres resulted in the death of her 74-year-old mother, Tomoko Ishibashi, and damaged her home and its contents. Joanne Ayres, individually and as administratrix of her mother's estate, her husband James, two siblings and, ultimately, her minor nephew, Takashi Namiki, filed suit for damages, invoking the Texas strict products liability provision and the Texas Deceptive Trade Practices--Consumer Protection Act (DTPA), Tex.Bus. & Comm.Code Secs. 17.41-.63.

Plaintiffs allege that the fire originated in a television set Joanne Ayres purchased from Sears, Roebuck & Company three and one-half years prior to the fire. Co-defendant Thomas International Corporation, the predecessor of defendant Warwick Electronics Incorporated, is a division of Whirlpool Corporation which allegedly marketed the set purchased by Ayres.

At the close of the plaintiffs' case-in-chief, the trial court granted defendants' motion for directed verdict under Fed.R.Civ.P. 50(a), expressing the opinion that the evidence presented, including the testimony of a seven-year-old eyewitness, a fire captain, and two expert witnesses, "was insufficient under Texas law to establish the existence of a defect when read in light of the Boeing Company against Shipman standard." The court went on to note that the mere fact of an accident was "insufficient as a matter of law to make a prima facie case for breach of implied warranty of fitness for a particular use." The claim for damages under the DTPA was rejected because counsel failed to ask Joanne Ayres where the set had been purchased. We disagree with the grant of a directed verdict. The essential inquiry is not whether the evidence established an actionable defect within the strict liability rubrics, an issue upon which we express no opinion, but whether the evidence fairly posed one of more jury questions. We are persuaded that it does.

SKETCH OF EVIDENCE

That there was a serious fire in the Ayres home, damaging the home and its contents and causing the death of Mrs. Ayres's mother is not contested. Plaintiffs contend that the fire started in the television set in the den and then spread to the house. Defendants counter that the fire may have originated below the television set and been drawn into the set by the chimney effect of a vent-hole in the bottom of the television housing. That issue is obviously contested.

Included in plaintiffs' evidence was the testimony of a captain of the responding fire department who stated that the burn pattern in the den was a "V" with the point located at the television set. Also included was the testimony of young Takashi Namiki who was watching the television when sparks appeared at its rear. In addition, plaintiffs offered the testimony of two expert witnesses who expressed the opinion that the set was defective and was the probable cause of the tragic fire. Since verdict was directed at the close of plaintiffs' evidence, the only countervailing evidence was that produced by cross-examination of plaintiffs' witnesses.

STANDARD OF REVIEW

The applicable standard of review in this case, for both the trial and appellate court, was set forth in Boeing Company v. Shipman In making this determination we apply federal standards of review to assess "the sufficiency or the insufficiency of the evidence in relation to the verdict," Fairley v. American Hoist & Derrick Co., 640 F.2d 679, 681 (5th Cir.1981), but in doing so in a diversity case, we refer to state law for "the kind of evidence that must be produced to support a verdict," McCandless v. Beech Aircraft Corp., 779 F.2d 220, 223 (5th Cir.1985).

                11 F.2d 365 (5th Cir.1969) (en banc).  In accordance with Boeing, "considering all of the evidence in the light and with all reasonable inferences most favorable to the party opposed to the motion, [we must determine whether] there is evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions."    Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 176 (5th Cir.1985).    See also Tubbs v. Campbell, 731 F.2d 1214 (5th Cir.1984).  A jury question is presented if there is such evidence
                
ANALYSIS

Nearly two decades ago, the Texas Supreme Court adopted Restatement (2d) of Torts Sec. 402A as its law governing products liability. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). This regime imposes strict liability on one who manufactures or distributes a product which proves to be defective. A plaintiff must establish that the defendant manufactured or marketed a defective product, that the defect rendered the product unreasonably dangerous for intended or reasonably foreseeable use, and that the defect caused the injury. Restatement (2d) of Torts Sec. 402A; Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974).

Proof of the defect and of the causative element may be established by direct or circumstantial evidence based on anecdotal or expert testimony. Kindred v. Con-Chem, Inc., 650 S.W.2d 61 (Tex.1983); Jack Roach Bissonnet, Inc. v. Puskar, 417 S.W.2d 262 (Tex.1967); General Motors v. Grizzele, 642 S.W.2d 837 (Tex.Civ.App.--Waco 1982, writ dism'd w.o.j.); Thiele v. Chick, 631 S.W.2d 526 (Tex.Civ.App.--Houston 1982, writ ref'd n.r.e.); Travenol Labs. v. Bandy Labs., 608 S.W.2d 308 (Tex.Civ.App.--Waco 1980, writ ref'd n.r.e.); see also Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.1985); Franks v. National Dairy Prods. Corp., 414 F.2d 682 (5th Cir.1969).

As the district court correctly noted, the mere fact that an accident happened, standing alone, does not establish that a product was actionably defective. See, e.g., Simien v. S.S. Kresge Co., 566 F.2d 551 (5th Cir.1978); Fort Worth Steel & Mach. Co. v. Norsworthy, 570 S.W.2d 132 (Tex.Civ.App.--Tyler 1978, writ dism'd w.o.j.). But the plaintiff need not establish the specific feature which made the product defective. V. Mueller & Co. v. Corley, 570 S.W.2d 140 (Tex.Civ.App.--Houston 1978, writ ref'd n.r.e.); Franks, supra. And, as noted, proof of defect, as well as the causation link, may be established by direct or circumstantial evidence and be the product of anecdotal or expert-opinion testimony.

The causative factor is denominated "producing cause" by the Texas courts. In its benchmark case of General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 n. 3 (Tex.1977), authored by then-Justice Reavley, now a judge of this court, the Texas Supreme Court endorsed the trial court's definition of producing cause as "an efficient, exciting or contributory cause, which, in a natural and continuous sequence, caused in whole or in part the ... injuries ..., and but for said cause the ... injuries would not have occurred. There can be more than one producing cause...."

The plaintiff is required to establish that the defect existed when the manufacturer or marketer relinquished control of the product, Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969), but that element is also provable by direct or circumstantial evidence, based on fact or opinion testimony, Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969). As might be expected, there is a characteristic intertwining of the proof of the defect, its existence when the defendant relinquished control, and the producing cause. Although imprecise, the lines are sufficiently definite and are fit grist for the mill of the trier-of-fact, in this instance the jury. See Bell Helicopter v. Bradshaw, 594 S.W.2d 519 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.).

Although proof of a feasible, safer alternative design is the most traveled avenue to proving the existence of a design defect, Mitchell v. Fruehauf Corp., 568 F.2d 1139 (5th Cir.1978); Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex.1978), negation of possible causes other than a defective product may suffice. Franks v. National Dairy Prods. Corp. In addition, the Texas Supreme Court has declared that "[i]f the plaintiff has no evidence of a specific defect in the design or manufacture of the product, he may offer evidence of its malfunction as circumstantial proof of the product's defect." General Motors v. Hopkins, 548 S.W.2d at 349-50. See also Kindred v. Con-Chem, 650 S.W.2d at 63, in which the Texas Supreme Court found that the opinion of an expert, in light of circumstantial evidence, "was more than a scintilla because it furnished a reasonable basis for differing conclusions concerning the existence of a ... defect."

Applying the governing Texas rules to the evidence offered by the plaintiffs, we conclude that a directed verdict for the defendants should not...

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